Published by the Internet Law Center

Menu

States Tackle Revenge Porn

In April last year, Village Voice did a cover story on Hunter Moore, publisher of revenge porn website Is Anyone Up and gave the world a poster child to focus attention on this growing problem. They described Is Anyone Up as

Anti-revenge porn websites have emerged such as Women Against Revenge Porn, End Revenge Porn and Not Without My Consent and in January a group of 20 victims sued revenge porn site Texxxan.com and GoDaddy in Texas state court. Surprisingly, GoDaddy’s motion to dismiss on the grounds of immunity under Section 230 of the Communications Decency Act was denied.

In addition, state legislatures are taking note of the issue. New Jersey passed a law making it a criminal offense to:

. . . knowing that he is not licensed or privileged to do so, . . . discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

Similar bills are moving forward in California and Florida, with the California bill being inspired by the 2012 death of Audrie Pott, a 15-year old Saratoga student who committed suicide after being raped by three boys while passed out at a party with photos of the incident circulated around her high school before her death. Her parents have stepped forward to reveal her story to raise awareness of this issue (and the boys are being prosecuted).

Any person who photographs or records by any means the image of another, identifiable person without his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, where the distribution of the image would cause a reasonable person to suffer serious emotional distress.

The ACLU and the Electronic Frontier Foundation have opposed the California legislation on First Amendment grounds, which has yielded a scathing condemnation from Daniel Castro of the Innovation Files:

Shockingly both the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), two purportedly die-hard privacy advocacy groups, have come out against the bill. I understand an interest in protecting free speech, but it’s hard to see the value the ACLU or EFF sees in protecting this type of abhorrent activity, especially with such a narrowly targeted bill. After all, we have anti-bullying laws and anti-hate speech laws and “revenge porn” is basically the worst of both of those rolled into one.